#24 Supreme Court

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1 Justice Scalia is 78
2 Justice Kennedy is 78
3 Justice Breyer is 76
4 Justice Ginsburg is 81
We wish them all well, of course, but the brute
fact is that whoever we elect as president in
November is almost certainly going to choose
at least one and maybe more new members of
the Supreme Court — in addition to hundreds
of other life-tenured federal judges, all of whom
will be making momentous decisions about our
lives for decades to come. ##
If you don’t think it
matters whether you
vote or not...think
Twisting The Law — With decision after
decision coming down on the side of big business,
the Supreme Court under Chief Justice John
Roberts has proven itself to be willing and eager
to twist the law to favor powerful corporate
interests over everyday Americans.
Shielding Big Business — In just the last
few years, the Court has radically rewritten laws
in order to shield big business from liability,
insulate corporate interests from environmental
and antitrust regulation, make it easier for
companies to discriminate against women and
the elderly, and enable powerful interests to
flood our election process with special interest
dollars. Fairness has been thrown out the
The 1% keep winning while the
99% keep losing.
Over the course of the next year, the Supreme
Court is poised to rule on nearly every major
political issue facing the country today.
Decisions to Come — When it reconvenes
in October, the Court will consider the
constitutionality of affirmative action and
is likely to accept for review cases on same
sex marriage, the Voting Rights Act of 1965,
abortion, indefinite detention, and campaign
finance. The Court’s decisions in these cases will
have serious implications for the fundamental
freedoms we enjoy, the equality of opportunity
to which we aspire and the democracy which we
have built. ##
By Mark Sherman, Associated Press
The issue — With four justices in their seventies,
odds are good that whoever is elected president
in November will have a chance to fill at least
one Supreme Court seat. The next justice could
dramatically alter the direction of a court closely
divided between conservatives and liberals. One
new face on the bench could mean a sea change in
how millions get health care, shape the rights of
gay Americans, and much more.
The President’s Picks — President Barack
Obama already has put his stamp on the high
court by appointing liberal-leaning Justices Elena
Kagan and Sonia Sotomayor, 50-somethings
who could easily serve a quarter-century or
more. Republican nominee Mitt Romney has
promised to name justices in the mode of the
court’s conservatives.
Why it matters — Since the New Deal, Supreme
Court decisions have made huge everyday
differences in American lives, from seminal
decisions to uphold Social Security, minimum
wage laws and other Depression-era reforms
to ringing endorsements of equal rights. And
anything is possible with five votes, a bare majority
of the nine-justice court. Decisions on many of
the hot-button issues in recent years have been
by 5-4 votes. These include upholding Obama’s
health care overhaul, favoring gun rights, limiting
abortion, striking down campaign finance laws,
allowing consideration of race in higher education
and erecting barriers to class-action lawsuits.
Vacancies — Supreme Court vacancies always
are a big deal. But the stakes become enormous
when the president has a chance to put a like-
minded justice on the court to take the place of
an ideological opponent. The most recent example
of what the change in a single seat can mean was
President George W. Bush’s selection of Samuel
Alito to take the place of Sandra Day O’Connor.
Both justices were appointed by Republicans, but
Alito is far more conservative than O’Connor on
such key issues as abortion, affirmative action and
campaign finance.
Retirement Considerations — As things
stand now, Anthony Kennedy, is the only justice
who leans conservative but sometimes sides with
the liberals on an otherwise evenly divided court.
The others older than 70 are the liberal-leaning
Stephen Breyer, and Ruth Bader Ginsburg, and
the conservative stalwart Antonin Scalia. No
one has indicated any intention to retire soon,
although Obama’s re-election could tempt Breyer
and Ginsburg to reconsider. Romney’s election
could prompt Kennedy and Scalia to change their
plans since justices, at least recently, tend to retire
when their replacement is likely to be of similar
But what might happen if the next president had
an unexpected opportunity to change the court’s
Obama’s Choices — Obama has voiced his
disagreement with the Citizens United decision in
2010 that has contributed to ever-freer campaign
spending. Of his two appointees, Sotomayor was
on the losing side of the Citizens United case while
Kagan argued the case for the administration in
her previous job. On health care, both justices
voted to uphold Obama’s health care law.
Romney already has called on the court to
overturn the Roe v. Wade decision from 1973 that
first established a woman’s right to an abortion.
Romney has said he would appoint justices like
Alito, Scalia, Chief Justice John Roberts and
Justice Clarence Thomas. He described them as
men who follow the text of the Constitution, not
their “personal policy preferences.”
But the health care case is a reminder that justices
who generally vote a certain way do not always
vote in a predictable fashion. Roberts, after all,
was the decisive - and lone conservative - vote to
uphold the health care law. ##
Jamie Raskin, The Huffington Post
— The last thing
America needs is
more Supreme
Court justices
who think that
corporations can do
no wrong. We’re still
reeling from the misdeeds of AIG and Wall Street, BP Oil,
Massey Coal, JP Morgan and Haliburton — just a few of
the corporations that have recently inflicted terrible losses
on families across America and society as a whole after
capturing regulatory agencies, corrupting public officials,
and flouting the law.
See No Evil — But the Roberts Court majority
sees no evil, handing out victories by the bushel
to big business. Without even being asked to do
so, five Justices in 2010 overrode their colleagues
in the Citizens United case and bestowed upon
the CEOs the power to spend trillions of dollars
from corporate treasuries promoting compliant
politicians to the public in campaign season.
Corporations Can Do No Wrong — Yet, just
when it looked like things couldn’t get any worse,
Republican presidential candidate Mitt Romney
selected as his top legal adviser Robert Bork, a
conservative polemicist whose career has been
devoted to the proposition that corporations can
basically do no wrong, the courts should faithfully
serve the corporate agenda, and democratic
government should step out of the way.
Strange Philosophy — While Bork is an
authoritarian statist when it comes to the rights
of individual Americans to obtain birth control
or read books, have sex or watch movies that
Bork disapproves of (see Borking America: What
Robert Bork Will Mean for the Supreme Court and
American Justice), he is a laissez-faire libertarian
when it comes to the rights of large corporations
to ditch environmental regulation, fire pro-union
workers and generally have their way with the
rest of us without regulatory restraint. He seeks
hierarchical discipline for natural persons but
maximum freedom for big businesses to merge
with one another, purge their workers, and splurge
on pet politicians.
The Bor k Rul e: Cor por at e Power Over
Gover nment , Cor por at e Gover nment Over
Peopl e
The key to seeing what Bork’s hand-picked judges
would do on the bench is analyzing Bork’s own
record as a judge on the United States Circuit
Court for the District of Columbia.
Bork’s Record — In August 1987, during the
controversy over President Ronald Reagan’s
nomination of Judge Bork to the United States
Supreme Court, the Public Citizen Litigation
Group published an exhaustive and devastating
report on Bork’s record as a judge.
Identify The Parties — The authors could find
no “consistent application of judicial restraint or
any other judicial philosophy” in Bork’s work on
the Court. Rather, by focusing on split decisions,
where judicial ideology is made most plain, Public
Citizen found that “one can predict [Judge Bork’s]
vote with almost complete accuracy simply by
identifying the parties in the case.”
[Continued on page 4, Bor k]
When the government litigated against a business
corporation, Judge Bork voted for the business
interest 100 percent of the time. However, when
government acted in the interest of corporations
and was challenged for it in court by workers,
environmentalists and consumers, Bork voted
nearly 100 percent of the time for the government.
Bork’s Rule — Thus, what we can think of as the
Bork Rule, a rule that now suffuses conservative
judicial activism: Corporations over government,
corporate government over people.
In the crucial field of administrative law, for
example, Judge Bork “adhered to an extreme
form of judicial ‘restraint’ if the case was brought
by public interest organizations against a
government regulation or policy. His vote favored
the government in every one of the split decisions
in which public interest organizations challenged
regulations issued by federal agencies.” In these
cases, Judge Bork defended, for example, the
Reagan administration’s corporate-friendly rules
relating to the environment, the regulation of
carcinogenic colors in food, drugs and cosmetics,
and the regulation of companies with television
and radio licenses, as well as privacy rules in
family planning clinics. Bork tends to vote to
uphold government policy when corporations like
it and consumers, environmentalists, and workers
are on the other side.
In the eight split decisions where a corporate
interest challenged the government’s regulatory
policy or ruling, Judge Bork voted straight down
the line against the government and for business
— every single time.
Bor k ’s Resul t Or i ent at i on: Wor ker s Lose,
Pol l ut er s Wi n
What the Bork Rule means is that there is no
formal integrity to his legal reasoning. The way to
figure out who is going to win in a case is simply
by identifying the parties. The reasoning flows out
of his choice of favorites appearing before him,
and this is a style of judging that is now pervasive
throughout the federal circuit courts.
We can fully expect a Bork-infused Supreme Court
and federal judiciary to continue promoting the
basic infallibility of corporate power. With Bork
at the helm, we will see more impunity and more
unaccountability in corporate structures that are
“too big to fail” and “too big to jail.” ##
No matter how many ads they run or how
many lies they tell , don’t vote for the
people who are buying our elections.
A brief, oversimplified guide to the differences in
language between the Republican and Democratic
— We do it together and government helps
us all.
— We do it alone and government gets in
the way.
—George Lakoff, Truthout
[Continued from page 3, Bor k]
Romney says that a woman’s right to
choose an abortion even in cases of
rape and incest isn’t up to him.
Romney: “This is the decision that
will be made by the Supreme Court.”
But Romney has promised to appoint
Supreme Court Justices who would
overturn Roe v Wade. As his chief
judicial advisor he chose Robert Bork,
a man with a long record of hostility
to women’s rights.
Mitt Romney: Too extreme for
women. Too extreme for America.
The 2011-12 U.S. Supreme Court term will be
best remembered for the Court’s landmark
ruling on the Patient Protection and Affordable
Care Act (“ACA”). While the Court upheld the
constitutionality of the Act, it did so by opening
the door to placing future limits on Congress’
ability to regulate interstate commerce and to
impose conditions on federal grants to the states.
That decision, however, was far from the only
ruling of major significance this term. The Court
issued a number of important decisions that
reflect its continuing bias in favor of corporate
interests and against the rights of everyday
Americans, demonstrating that Chief Justice John
Roberts’ One-Percent Court was once again open
for business.
With decision after decision coming down on the
side of big business, the Supreme Court has proven
itself to be willing and eager to twist the law to
favor powerful corporate interests over average
Americans. Under the leadership of Chief Justice
John Roberts, the Court has radically rewritten
laws in order to shield big business from liability,
insulate corporate interests from environmental
and antitrust regulation, make it easier for
companies to discriminate against women and
the elderly, and enable powerful interests to flood
our election process with special interest dollars.
Fairness has been thrown out the window. The
powerful keep winning while everyday Americans
keep losing.
[Continued on page 6, One Per cent]
Senator Bernie Sanders puts it this
way: What the Supreme Court did in
Citizens United is to say to the billionaires
and the corporations they control: “You
own and control the economy; you own
Wall Street; you own the coal companies;
you own the oil companies. Now, for a very
small percentage of your wealth, we’re
going to give you the opportunity to own
the United States government.”
And if you don’t vote, you are giving them
that opportunity.
Is that what you want?
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through 2014. Your vote is important!
Well-informed voters are our greatest voting
asset. Several public interest organizations
and grassroots groups are challenging the
corporatization of the Court. For information and
action, check out these:
• Brennan Center for Justice:
• Common Cause:
• Free Speech for People:
• Move to Amend: www.movetoamend.org
• People for the American Way: www.pfaw.org
• Public Campaign: www.publicampaign.org
• Public Citizen: www.citizen.org
• Think Progress: www.thinkprogess.org
• The Rational Majority: TheRationalMajority.org
The Cor por at e Cour t Shi el ds
Cor por at i ons f r om Li abi l i t y
In Riegel v. Medtronic, Inc. (2008), the Court
ruled that a consumer who has been seriously
injured by a defective medical device cannot sue
the manufacturer if the product was approved
by federal government regulators, even if the
company knew the product was dangerous.
In Exxon Shipping v. Baker (2008), after 19 years
of legal battles, the Court allowed Exxon to escape
full financial liability for the damage done by the
Exxon-Valdez oil spill to communities and the
environment, leaving over 30,000 people whose
livelihoods and community were destroyed by
the disaster with only a tenth of the original jury
award for punitive damages—a sum completely
inadequate to make up for their loss. ##
[One Per cent, continued from page 5]

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